Denaturalisation, ‘Terrorism’ and National Identity in France

Hannah Arendt once stated that we might “measure the degree of totalitarian infection by the extent to which concerned governments use their rights of denaturalisation”[1]. The latest debate in France, following Hollande’s declaration of a state of emergency and of his determination to insert denaturalisation into the constitution, raises questions about the severity of France’s totalitarian infection when it comes to counter-terrorism measures. How did denaturalisation become associated with the fight against terrorism? And what are the effects of denaturalisation on the balance between the state authority and citizens’ political space?[2]

Denaturalisation’s History in French Politics

Hollande’s proposition to strip terrorists of their nationality was not a new vision in French politics of security, nor did his renunciation to carry out the constitutional reform indicate the end of denaturalisation measures in France. Denaturalisation measures reach back to the First World War. They then served French authorities to handle spying activities, and targeted nationals by acquisitions born in an enemy nation. Throughout its history, the French law on denaturalisation has been particularly problematic because instead of applying equally to all French citizens, it solely applies to nationals by acquisition, that is, to French citizens who were born in a foreign country and disposed of another nationality before acquiring the French one. In this sense, denaturalisation complicates the notion of citizenship by generating a differentiated notion of French citizenship: it produces a principle of unequal citizenship, according to which born nationals enjoy an irrevocable right to nationality, whereas new nationals only have access to a conditional form of national identity. Although this first law on denaturalisation was explicitly put forward as an exceptional measure during the war, history shows that denaturalisation was not abrogated as planned. After the war, for instance, politicians invested denaturalisation measures to ostracise Communists. After all, denaturalisation had become a powerful tool for the state to get rid of those who had been defined as public enemy. In the Second World War, denaturalisation came to target Jews, thousands of them. Besides, denaturalisation was now also aimed at political dissidents, born and new nationals alike. For instance, De Gaulle was then denaturalised. In the 1990s, it was the word terrorism that came to qualify those whom denaturalisation may target. Legislated in article 25 of the Civil Code, the primary conditions for French nationals to be denaturalised currently read:

1° If [the individual who has acquired French nationality] is guilty of an act which qualifies as a crime or an offense that undermines the fundamental interests of the Nation, or a crime or an offense that qualifies as an act of terrorism.

Negotiating Citizens’ Rights for Security

Clearly, Hollande’s recent proposition to strip ‘those convicted for undermining the fundamental interests of the nation or for an act of terrorism’ ties into broader historical, political, and governmental struggles, where citizenship operates as a fundamental aspect of politics of security. Considering the exponential increase of counter-terrorism measures in the past decades, and considering the ease with which European countries such as France, England and the Netherlands tend to view denaturalisation as a logical measure to implement while they try to tackle problems of radicalisation, it is worth reviewing the juridical political background according to which denaturalisation became part of the fight against terrorism in more detail. The point is to understand the effect of denaturalisation on the balance between the state’s authority and citizens’ political space. In fact, since the notion of terrorism both participates in the denial of citizen rights and in the separation of the citizenry from those seen as endangering society, its ambiguous meaning allows those in power to constantly review the boundaries of their authority.

‘Terrorism’ and Denaturalisation: A Pas de Deux

The context in which article 25 of the Civil Code was amended to its latest version was a parliamentary bill pertaining to the repression of terrorism, which was debated from November 1995 to June 1996. The main object of the bill was to update the French jurisdiction relevant to the fight against terrorism, both on the level of repressive measures and on the level of procedural measures. It responded to a series of terrorist attacks that took place between 1994 and 1996. Characteristic of the insertion of the notion of terrorism into article 25 of the Civil Code was a lack of parliamentary debates on the topic as well as a lack of public and sound argumentation as to why denaturalisation must be inscribed in counter-terrorism measures. The amendment was indeed approved by the Parliament based on the false justification that the amendment would bring in nothing new, which is a rhetorical aberration. First of all, as the provision legislated for an extension of the scope of article 25, it certainly brought in something new. Furthermore, while the rapporteur claimed that denaturalisation was already legislated ‘for terrorist crimes leading to a sentence of 5 years of imprisonment or more’, the law enforced at that time reads: ‘for an act that qualifies as a crime by French law and that leads to a sentence of five years or more in prison’. Clearly, the notion of ‘terrorism’ did not initially figure in article 25 of the Civil Code, and there is no indication whatsoever that the crimes or offenses cited must be interpreted as acts of terrorism. Such argumentative slippage is particularly troubling because it happened in the context of a bill that precisely aimed to refine the juridical distinction between common crimes and acts of terrorism. The ease with which the term of ‘terrorism’ became part of denaturalisation law, and hence became embedded in the Civil Code, then, prompts further scrutiny about how the term of ‘terrorism’ behaves in juridical political contexts.

A Juridical Solution to a Political Problem?

The term of ‘terrorism’ has a tenacious tendency to come across as self-explanatory, which makes it arguably unproblematic to categorise in the law. The juridical definition of the term, however, comes with notorious difficulties, laying bare seminal political struggles including disagreements about fundamental citizens’ rights. Exemplary of such difficulties is the acknowledgment of the rapporteur to the commission of law that ‘the [French] legislator of 1986 had to tackle the problem of the “missing/unknown definition” [l’introuvable définition] of terrorism’. The expression of ‘missing/unknown definition’ points at the fact that ‘terrorism’ was heterogeneous to such an extent that it was impossible to define it juridically. The solution was found in a definition of ‘act of terrorism’, as opposed to the concept of ‘terrorism’ tout court. ‘Act of terrorism’ was defined according to the following two criteria: (1) it refers to a determined crime or offense (such as assassination, hostages or destruction), and (2) it is related to an individual or collective enterprise whose aim is to cause a grave disturbance of the public order by means of intimidation or terror (Penal Code, article 421-1). Studying this new expression in detail, however, shows that the new term is just as heterogeneous as its antecedent. In fact, ‘acts of terrorism’ are not new forms of violence; their natures (such as assassinations, theft and hostages) were already known and codified as crimes before. What is new, according to the law, is their goal and their means. Accordingly, the act in the expression ‘act of terrorism’ is not that which is terroristic. Terrorism is that which surrounds the act. In effect, the definition of terrorism is still missing, yet its absence is now camouflaged by a quasi-definition which depends upon political and contextual interpretations. This impossibility – or refusal – to define acts of terrorism properly has a particular effect: it turns terrorism into a term whose meaning remains malleable. In short, terrorism being an unknown and unknowable threat follows a narrative of uncertainty and crisis that aligns those who are labelled as terrorists against the community. While the law proves unable to define it objectively, ‘terrorism’ remains the ultimate category for the state to decide who needs to be removed from the national environment. In this economy, denaturalisation law constructs new nationals, as well as citizens with dual nationalities, as particular citizens who must be governed by special means.

Totalitarian Infection: Making Foreign Those Prosecuted in the Name of Security

If the notion of citizenship has always rested on exclusion and divisions between insiders and outsiders, the quick and unreflective insertion of the concept of ‘terrorism’ in the language of denaturalisation – and hence in the Civil Code – reveals a tremendous and highly ambiguous increase in the state’s capacity to make foreign those who are prosecuted in the name of the Nation’s security. Although denaturalisation was ever described as a ‘reserve of sovereignty that allows the state to intervene in exceptional cases’[3], the heterogeneous character of its operating criteria stresses the problem of having such a structural ‘reserve of sovereignty’ when the criteria for such a reserve are in themselves a way for governmental powers to revise the limit of their authority ad hoc. In other words, the criteria for defining the terms of an ‘exceptional intervention’ are in themselves another ‘reserve of sovereignty’. Such ‘reserves of sovereignty’ are therefore potentially infinite and betray the presence of a chronic ‘totalitarian infection’ in French nationality politics.